ELR Citation: ELR 20491
No(s). 93-0267-S-LMB (D. Idaho Aug 31, 1995)

The court holds that two agricultural trade associations lack standing under the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) to challenge the U.S. Fish and Wildlife Service's (FWS') listing of four species of Snake River mollusks as endangered and one as threatened. The court first holds that the injuries of which the associations' members complain are not within the zone of interests protected by the ESA. The associations argue that listing the mollusks would adversely impact their members' aesthetic and recreational enjoyment of the species' habitat and that it might harm their water rights and otherwise economically injure their farming operations. The court holds that the associations cannot establish that the area of the river and the water in which their members recreate or which they aesthetically enjoy will be destroyed or harmed by listing the mollusks. In addition, there is nothing to show that the associations are protecting an interest germane to their purpose—representing the economic, educational, and social interests of their members. The court next holds that where the only injury of which a plaintiff complains is that the challenged action under the ESA results in additional costs to its business operations, and where such harm cannot be relieved by preserving the species, such a claim is not within the zone of interests contemplated in and protected by the ESA. The court finds that the associations have not presented any evidence suggesting that the costs they allege they have incurred, or will incur as a result of the federal defendants' actions, will be relieved by preserving the mollusks. Nor is there any evidence in the record establishing that the associations otherwise have a genuine economic interest in preserving the mollusks. Relying on Bennett v. Plenert, 63 F.3d 915 [25 ELR 66369] (9th Cir. 1995), the court holds that neither the members' aesthetic or recreational interests are within the zone of interests of the ESA because to remedy such injury would not serve the purpose of protecting or preserving the listed mollusks.

The court next holds that the associations are not entitled to "procedural standing" for their ESA and APA claims under footnote seven of Lujan v. Defenders of Wildlife, 22 ELR 20913 (1992), because the injuries to their proprietary interests in the land and water do not fall within the zone of interests sought to be protected by the statutory provision whose violation forms the basis of the complaint. The court, however, grants the associations footnote seven procedural standing to complain about the alleged failure of FWS to comply with the Federal Advisory Committee Act (FACA). FACA clearly accords the associations the procedural rights they claim were denied them. The members have concrete economic and other similar interests in the land and water in which they have proprietary interests adjacent to the areas affected by the listing. Further, the associations' asserted injury, that FACA violations resulted in a biased recommendation from the committee, falls within the zone of interests protected by FACA. The court holds, however, that a mandatory injunction delisting the mollusks is not an appropriate remedy for the alleged FACA violations because the associations waited to seek the injunctive relief they request until well after the final decision listing the mollusks was issued.

Counsel for Plaintiffs
Gary D. Babbitt
Hawley, Troxell, Ennis & Hawley
First Interstate Ctr.
877 Main St., Ste. 1000, Boise ID 83701
(208) 344-6000

Counsel for Defendants
John L. Marshall
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000